By: Merrick T. Rossein and Jennifer Hope
Claims of discrimination and retaliation under Title VII of the
1964 Civil Rights Act, the Age Discrimination in Employment Act,
the Americans with Disabilities Act, the Family Medical Leave Act,
and disputes concerning other federal, state, and local employment
statues and common law are increasingly decided by
arbitrators. The selection of the arbitrator is an essential
component in the process of creating a fair and impartial forum for
the resolution of work-place disputes. In the selection of
the arbitrator and throughout the arbitral process, neutral
arbitrators are required to make disclosures of information that
might raise an appearance of or an actual conflict of interest.
Disclosures should be made before the appointment of an
arbitrator, and arbitrators generally remain under a continuing
obligation to make any disclosures concerning possible conflicts of
interest that come to the arbitrator’s attention after his or her
appointment. Rules and ethics standards vary concerning the
extent of such disclosures. Despite these ethics standards,
however, the determination of vacatur depends on whether an
arbitrator’s nondisclosure or allegedly deficient disclosure
satisfies the statutory scheme under which an arbitration award is
being challenged, which in the United States is most likely the
Federal Arbitration Act (“FAA”).
This paper examines the disclosure rules and the interpretation
of these rules by federal courts and proposes a less onerous
standard. The majority of the courts and codes adopt a
reasonableness standard to determine whether evident partiality
exists that requires disqualification of the arbitrator. One
important issue examined is whether the courts uniformly apply the
reasonableness standard. Another issue of great concern to
the parties engaged in arbitrations and the arbitrators is whether
the code requirements are realistic or too onerous and difficult to
meet, leading to increased arbitration expenses and delay. This
paper critically assesses the various standards and proposes a
standard intended to ensure that the arbitral process remains
expeditious and efficient in the context of employment
arbitration.